Congress is once again debating a Constitutional Amendment to ban flag burning. This has been a hot issue for the right since the 1989 Supreme Court decision Texas v. Johnson which held that flag-burning was Constitutionally protected speech. I wrote about this issue in the February 1990 issue of The Freeman.
The text of that article is set forth below:
The recent Supreme Court decision overturning state and Federal laws that made it a crime to burn or desecrate the American flag has created a storm of controversy. By now, the arguments against the decision have become familiar: by making it legal for the flag to be burnt or desecrated, it is argued, we are denigrating the banner under which Americans have fought and died for over 200 years. Furthermore, it is held, people who burn or desecrate the flag are attacking America as a nation and do not deserve the protection of the Constitution of the nation they are implicitly rejecting.
However, the reaction to the decision has focused more on emotional appeals than rational analyses of the issues at hand. We must not allow personal esthetic or emotional attitudes about flag burning to obscure the essential question: which should we be protecting, the flag of the United States or the principles of individual liberty, responsibility, and self-government upon which the United States was founded and which the flag is supposed to symbolize?
In adopting the position of the opponents of the Supreme Court decision, one would have to accept the seemingly contradictory idea that in order to protect the symbol of a nation founded on individual liberty, one must restrict individual liberty. Taking this position also leads one into dangerous territory in relation to other areas of action or thought and the effect that they might have on the rest of society. After all, if flag burning can be banned because a majority of the public are offended by an attack on what they believe to be a sacred symbol, then why not extend the ban into other areas where an individual?s actions might be offensive to others? If we ban flag burning, then why not ban movies or books that depict in an offensive way religious figures or other subjects considered to be sacred? Why not ban magazines, films, or groups that offend the sensibilities of women, blacks, Jews, or any other minority group?
A person who opposes flag burning may argue that he would not extend his logic as far as that in the above examples. But the reasoning behind these examples and that behind flag burning are of the same majoritarian parentage: the belief that if a sufficiently large number of people find an activity offensive then they can use the coercive power of the state to regulate or, preferably, to ban that activity.
The problem, then, with taking the position that the flag should be protected even at the expense of individual liberty is not that flag burning or any other activity deemed to be offensive has some sort of redeeming value, or that symbols such as the flag are unimportant, but that in banning these activities, one is accepting a principle that is ultimately destructive of a free society. By accepting this principle, we are allowing for the creation of a society wherein appropriate expressions of patriotism, appropriate forms of artistic expression, and appropriate activities are decided by a process of majority rule that, rather than minimizing conflict in society, heightens it to a dangerous degree.
A preferable position would be to assert that while the flag is an important American symbol, it is more important that we protect principles such as liberty, private property, freedom of speech, and freedom of thought that have been at the very core of the American system, even if this means that we must tolerate activities that offend us. In taking this position, one would not have to assert that these activities have any redeeming value or recommend that others engage in them, but simply that toleration of such acts is the price that must be paid for living in a free society. Most important, it would not be left up to the state or an ever-shifting majority to decide what is offensive and whether something that is deemed offensive should be banned. This would minimize the conflicts over such sensitive areas as religious belief and artistic expression.
It is undeniable that to most Americans, including those who value liberty, flag burning is offensive. We do not like to see someone set fire to a banner that is a symbol of freedom, especially when that person rejects the freedom the flag symbolizes. However, we must not allow our love for the flag-as-symbol to blind us to the reality that a law banning flag burning or desecration would be as much a restriction on individual liberty as would be a law banning publication of a book that seems to denigrate a religion. Neither must we forget that the moment one concedes that certain activities should be banned simply because they offend other people, one is allowing for the creation of an environment in which no one is safe to do what he might, lest he offend someone and bring down on him the heavy hand of the government.
The answer to the question, ?Which should we protect, freedom or the flag?? is that we should protect freedom above all else. In denying an individual the right to burn his own flag in protest or to engage in any number of offensive but otherwise harmless activities, we are denigrating the principles that the flag is supposed to symbolize and are doing a disservice to the patriots who established this nation not to protect a flag but to enshrine freedom.